Essentially, there was a heated argument in May 2008 which followed from Firth asking Pieters and Noble for identification in the lawyer's lounge. She explained that she frequently questions people that she doesn't recognize. The Tribunal noted that there were several people in the lounge at the time that she wouldn't have known, and inferred from this that the decision to stop Pieters and Noble was based on their race. The Tribunal felt that Firth's non-discriminatory explanations did not overcome this inference, and that it was likely that the decision to question them was at least partly based on race.
"Racial profiling" is a very difficult issue in human rights, involving legitimate and legal scrutiny applied in unfair measure to one group. When a police officer questions one individual but not another, detains one individual but not another, tickets one individual but not another, these are all ostensibly permissible exercises of police discretion...yet if the discretion is used in whole or in part because of race, it will violate the Human Rights Code.
This case is in some ways similar, though the Divisional Court downplayed the similarities when it recently allowed an Application for judicial review, on the basis that the Tribunal erred in its assessment of whether or not there was a prima facie case. Where a distinction has been made, it falls to the person asserting discrimination to establish the link between the treatment and a prohibited ground of discrimination. The Divisional Court felt that the Tribunal reversed this burden of proof by inferring the link from the absence of non-discriminatory explanation.
In any event, the Divisional Court found, there were findings of fact that were inconsistent with the findings that Firth lacked a credible non-discriminatory explanation.
I think the nuances are close here, but the lesson is clear: A member of a protected group who receives unfavourable treatment cannot expect the Tribunal to presume that the treatment was a result of membership in the group.
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.